Pike v. Zacharie

1 Rob. 208

Opinion

Bullard, J.

This is an action upon an order or draft, drawn by Dakin and Dakin, upon the defendants, and accepted by them, payable on the completion of the contract of the drawers with the defendants, for the building of certain stores. The answer admits the acceptance; but the defendants aver that they are in no manner indebted to the plaintiffs. There was judgment against them, and they appealed.

It appears in evidence that at the time this suit was instituted the stores were completed, and even in possession of the defendants. It is true the drawers left some trifling part of the work unfinished, which was afterwards done by other workmen employed by the defendants. But it is not shown that the defendants have sustained any loss, and it is clear they have their recourse upon Dakin and Dakin for a reimbursement of that expense, if they have not already been paid, which is not shown.

We are of opinion that the parties did not contemplate that the finishing of the work should be in any manner at the risk of the holder of the order, in the sense of the word contended for by the defendants; but that the acceptance fixed a time of payment, which was uncertain. But whether the buildings were completed by the drawers them selves, or at their expense by the owners, appears to us immaterial; at least until it is proved that a loss has been sustained by the defendants, which is neither shown nor pretended.

' Judgment Affirmed.